Texas Department of Agriculture standing up to the US EPA.
Editor, TSTA Weekly Update
Earlier this week the State of Texas and the Texas Department of Agriculture (TDA) reacted to US EPA issuance of new rules for the enforcement of Waters of the US (WOTUS). For those following the WOTUS issue, either the frequent updates contained in this newsletter or another souce, you're familiar with the history, and over-reach, of this act. Beginning in the Obama years, the US EPA, in concert with the US Army Corps of Engineers, proposed to extend federal jurisdiction over virtually every waterway and body of water in the US.
WOTUS extends control from "navigable" waterways to any body of water connected to, or having potential to connect to, other bodies of water. This has been interpreted to include playa lakes on the Texas High Plains. Enforcement actions have been taken against landowners with intermittent creeks (wet weather creeks) on private property who attempted to construct modest containment for watering livestock. It's one of the most burdensome federal overreaches of all time according to many sources ranging from cattle growers organizations to national farmer and commodity organizations.
Under President Trump WOTUS went away but one of the current administrations first actions was to reinstate WOTUS - with a vengeance. Remember the article just last week that was in this very spot regarding public comment? Well, the EPA simply by-passed that little requirement and issued new regulations. We suppose they felt that had already "done" that back during the Obama administration - which in a manner of speaking is true. However, the roll-out of WOTUS this time around contains significant differences with the first go-round and hence require a new round of public perusal.
Earlier this week TDA Commissioner Sid Miller issued this statement:
Today the U.S. Environmental Protection Agency (EPA) issued a final rule on an amended Waters of the United States (WOTUS) implementation program. The “final” rule was published without input from citizens after the EPA bypassed standard public comment period.
“It is outrageous that the EPA is immediately implementing the WOTUS rule without formal public input from the people. They are cramming this down the throats of farmers and ranchers across the country. The Texas Department of Agriculture has prior legal rulings that prohibit this overreach from being enforced in our great state,” Commissioner Miller said.
On March 19, 2023, in Texas, et al v. EPA, the United States District Court for the Southern District of Texas issued an order enjoining the EPA and Army Corps of Engineers from implementing the WOTUS rule in Texas. This means the court order will stay in effect, thanks to the work of TDA and others.
Commissioner Miller added “Today’s amendments claim to conform the WOTUS rule to legal precedent, but they don’t come close to fixing the problems this rule presents to agriculture. The negative impacts of this rule are still tremendous. We will continue to fight for the rights of farmers and ranchers.”
The following is from the Texas Attorney General's Office. It indicates some aspects of the current WOTUS that are more favorable than previous incantations but some areas are perhaps more onerous than before. Stay tuned this is a long way from over.
Now that we’ve had a little time to review the rule, I wanted to provide our initial thoughts on the new rule versus our MSJ. The good news is that the new rule does away with the significant nexus standard and limits wetlands to those with a “continuous surface connection.” There are a few areas argued in our MSJ that are not addressed in the new rule that we wanted to provide to help inform your review.
- Relatively Permanent Standard (used for (a)(3) tributaries, and (a)(5) other jurisdictional waters). The agencies kept the standard as it was in the 2023 Rule. This means that there is no definition of “relatively permanent,” just the discussion in the preamble. The term “seasonally” is undefined (its 3-months under the current implementation) and the standard includes “tributaries in which extended periods of standing or continuously flowing water are not linked to naturally recurring annual or seasonal cycles,” as well as flows driven by water management practices and effluent-dependent.
- Interstate Waters. The new rule does away with “interstate wetlands” but keeps “interstate waters,” which could theoretically include ephemeral streams that cross state lines. This category was addressed by Judge Brown in the PI. (editor's note: PI is "preliminary injunction.")
- Impoundments. If the preamble holds, federal jurisdiction will extend to impoundments “regardless of the water’s jurisdictional status at the time the impoundment was created” and, theoretically, to off-channel impoundments (“an impoundment with no outlet or hydrologic connection to the tributary network”).
- Notice and comment. The new rule was promulgated without following notice and comment requirements of the Administrative Procedure Act. The federal agencies contend that “because the sole purpose of this rule is to amend these specific provisions of the 2023 Rule to conform with Sackett, and such conforming amendments do not involve the exercise of the agencies’ discretion, providing advance public notice and seeking comment is unnecessary,” citing 5 U.S.C. 553(d)(3). Relatedly, the federal agencies rely on the severability provision in the 2023 rule that was not listed in the proposed rule, so we may want to add an APA notice-and-comment/ logical outgrowth challenge to address this component.
- Remedy. All in all, the new rule seems to be an improvement to both 2023 rule and the pre-2015 regime. Accordingly, one element we are considering is the relief we plan to seek. Right now, we seek remand and vacatur. But if the new rule is an improvement on what the federal agencies are currently implementing, we may want to ask for remand without vacatur. (editor's note: "vacatur" is Latin for "it is vacated" or cancelled.)
Although we do not need new referral letters, we’d like to touch base with each of the client agencies in the next week or week after. Before then, we’d appreciate your prompt review and analysis of the rule including, but not limited to, the considerations we listed above.
J. Amber Ahmed (Office of Attorney General)
American Farm Bureau Federation President Zippy Duvall commented today on the Biden Administration's revised Waters of the U.S. Rule.
"EPA had a golden opportunity to write a Waters of the U.S. Rule that's fair to farmers and stands the test of time, but instead chose to continue government overreach and revise only a small slice of the rule that was rejected by the Supreme Court.
"We're pleased the vague and confusing 'significant nexus' test has been eliminated as the Supreme Court dictated. But EPA has ignored other clear concerns raised by the Justices, 26 states, and farmers across the country about the rule's failure to respect private property rights and the Clean Water Act.
"Farmers and ranchers share the goal of protecting the resources they're entrusted with. They deserve a rule that respects farmers as partners in that effort."
And (there are lots of others but Farm Bureau and Ag Retailers are a good sample)
Agricultural Retailers Association (ARA) President & CEO Daren Coppock released the following statement expressing serious concern with the final "Waters of the United States" (WOTUS) rule announced today by the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers:
"ARA is extremely disappointed in the missed opportunity by the EPA and Army Corps of Engineers to follow the law and direction of the U.S. Supreme Court following the Sackett v. EPA decision to clearly define the jurisdiction of the Clean Water Act (CWA).
"The agencies failed to fully address all of the issues raised by the Supreme Court without adequately engaging impacted stakeholders and state agencies serving as co-regulators. Repeating mistakes will only lead to the continuation of flawed, unworkable regulations that will be litigated in the federal courts.
"ARA and other impacted stakeholders from the agricultural industry remain interested and able to work with the agencies on regulations that follow both the spirit and intent of the court."